09-0462 | Omnilex

Testo completo

09-0462
Manganiello
v. Agostini

UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT

August Term, 2009

(Argued: January 11, 2010
Decided: July 23, 2010)

Docket No. 09-0462

ANTHONY MANGANIELLO,

Plaintiff-Appellee,

\- V. -

THE CITY OF NEW YORK, SHAWN ABATE, individually and
as a New York City Police Detective, DEREK PARKER,
individually and as a New York City Police
Detective, HENRY SCOTT, individually and as a New
York City Police Lieutenant, ALEX PEREZ, individually
and as a New York City Police Officer, MIRIAN NIEVES,
individually and as a New York City Police Officer,
MICHAEL PHIPPS, individually and as the Commanding
Officer of the 43rd Precinct, JOHN McGOVERN,
individually and as a New York City Police Detective
Sergeant, ROBERT MARTINEZ, individually and as a New
York City Police Officer, GERYL MCCARTHY,
individually and as a New York City Police Deputy
Inspector,

Defendants,

LUIS AGOSTINI, individually and as a New York City
Police Detective,

Defendant-Appellant.

Before: KEARSE and CABRANES, Circuit Judges, and EATON, Judge *.

\* Honorable Richard K. Eaton, of the United States Court of
International Trade, sitting by designation.

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Appeal from a judgment of the United States District Court
for the Southern District of New York, Harold Baer, Jr., Judge,
following a jury verdict awarding plaintiff $1,426,261 in
compensatory damages, plus $75,000 in punitive damages, on claim
brought under 42 U.S.C. § 1983 for malicious prosecution. See
Manganiello v. Agostini, No. 07 Civ. 3644, 2008 WL 5159776
(S.D.N.Y. Dec. 9, 2008) .

Affirmed.

MICHAEL H. JOSEPH, White Plains, New York
(Osorio & Associates, White Plains,
New York, on the brief), for
Plaintiff-Appellee.

VICTORIA SCALZO, Assistant Corporation
Counsel, New York, New York (Michael
A. Cardozo, Corporation Counsel of the
City of New York, Stephen J. McGrath,
Amy Okereke, New York, New York, on
the brief) , for Defendant-Appellant.

KEARSE, Circuit Judge:

Defendant Luis Agostini, a former detective in the New
York City ("City") Police Department ( "NYPD"), appeals from a
judgment entered in the United States District Court for the
Southern District of New York following a jury trial before Harold
Baer, Jr., Judge, ordering Agostini to pay plaintiff Anthony
Manganiello, who had been acquitted of charges of murder,
$1, 426, 261 in compensatory damages, $75,000 in punitive damages,
and $215,037.50 in attorneys' fees, on Manganiello's claim,
brought under 42 U.S.C. § 1983, for malicious prosecution. On
appeal, Agostini contends principally that the district court

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should have granted him judgment as a matter of law on the ground
(a) that the malicious prosecution claim was foreclosed by the
existence -- or presumed existence arising from a grand jury
indictment -- of probable cause for Manganiello's prosecution, or
(b) that Agostini is entitled to qualified immunity on the basis
that it was objectively reasonable for him to believe that
probable cause existed. Alternatively, Agostini contends that he
should be granted a new trial because the jury's verdict was
excessive or because there were various alleged errors in the
district judge's rulings, instructions, questions, and comments at
trial. For the reasons that follow, we affirm the judgment of the
district court.

# I. BACKGROUND

The present case had its inception in the February 12,
2001 fatal shooting of Albert Acosta at the Parkchester South
Condominiums (the "Parkchester") in the Bronx, New York. Agostini
was the NYPD detective in charge of the murder investigation.
Acosta and Manganiello were special patrol officers who had been
on duty at the Parkchester on February 12. Manganiello was
promptly arrested for the murder but was released less than 24
hours later for lack of probable cause. He was rearrested on
April 20, 2001, and was tried in 2004 on charges of second-degree
murder and other related charges; he was acquitted on all counts.

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After he was acquitted, Manganiello commenced the present
2 action under 42 U. S.C. § 1983 against Agostini and nine ot

other
individuals who at pertinent times were members of NYPD involved
in investigating the Acosta murder, as well as against the City,
for malicious prosecution. The district court granted summary
judgment dismissing Manganiello's claims against the City and five
of the individual defendants but allowed his claims against
Agostini, NYPD Detective Shawn Abate, and three other defendants
to proceed to trial. See Manganiello v. City of New York, No. 07
Civ. 3644, 2008 WL 2358922 (S.D.N.Y. June 10, 2008)
( "Manganiello I") . At trial, the jury, on a detailed verdict
sheet, found that only Agostini and Abate had been proven to have
maliciously prosecuted Manganiello. (See Verdict Sheet | 1.) In
addition, asked, with respect to each defendant separately,
whether Manganiello had

proved by a preponderance of the evidence that (A)
the Defendant misrepresented the evidence to the
prosecutors, or failed to provide the prosecutor with
material evidence or information, or gave testimony
to the Grand Jury that was false or contained
material omissions, and (B) the Defendant knew that
he . . . was making a material misrepresentation or
omission or giving false testimony,

(Verdict Sheet | 2 (emphasis in original) ), the jury answered "NO"
with respect to Abate and "YES" with respect to Agostini (id. ) .

In light of the jury's findings with respect to Abate, the
district court granted a motion to dismiss the claim against him
on the ground of qualified immunity. (See Trial Transcript
("Tr. ") 839.) Thereafter, in an Opinion and Order dated December
9, 2008, Manganiello v. Agostini, No. 07 Civ. 3644, 2008 WL

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5159776 (S.D.N. Y. Dec. 9, 2008) ( "Manganiello II"), the court
denied motions by Agostini (1) pursuant to Fed. R. Civ. P. 50 for
judgment as a matter of law on the ground of qualified immunity or
lack of proof of the elements of a malicious prosecution claim,
and (2) in the alternative, pursuant to Fed. R. Civ. P. 59, for a
new trial on the ground that the district judge committed various
errors during the trial, see Part III below.

The following description summarizing the events preceding
Manganiello's acquittals -- which are described more fully by the
district court in Manganiello II, 2008 WL 5159776, at \*3 -\* 5 -- is
based on the evidence presented at trial in the present action,
taken in the light most favorable to Manganiello as the party
against whom Agostini sought judgment as a matter of law.

A. Agostini's Investigation and the Charges Against Manganiello

On February 12, 2001, Acosta and Manganiello, on the
8 a.m. to 4 p.m. shift, were assigned to patrol, separately, areas
in the eastern quadrant of the Parkchester, which included the
building at 1700 Metropolitan Avenue ("1700 Metropolitan"). At
about 10:15 a.m., the Parkchester security office sent a message
over the security radio system stating that there was a "1013" --
meaning an "officer down" -- in the basement of 1700 Metropolitan.
Manganiello, who had been on his way to a diner for a coffee
break, raced to the scene, where numerous police cars had already
arrived. Manganiello entered the basement and saw the bleeding
body of Acosta. When NYPD crime scene investigators arrived,

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Manganiello left the building, but he was quickly stopped by NYPD
Officer Miriam Nieves, who grabbed his hands and started sniffing
them. Nieves and other officers asked Manganiello to come to the
police station to help with the investigation. Manganiello
agreed.

Upon arriving at the station, Manganiello was placed in an
interrogation room where he was questioned by Agostini. Agostini
asked whether Manganiello knew of anyone who had animosity toward
Acosta, and Manganiello described an incident in which Acosta had
been assaulted by members of the Bloods gang, and another in which
local thugs had threatened to shoot Acosta. Agostini then asked
whether Manganiello had killed Acosta. Manganiello testified that
when he responded that he had had nothing to do with it, Agostini
"stands up, pissed off and he's looking at me like a piece of
garbage." (Tr. 68.) Agostini then called in two other
detectives, and they strip-searched Manganiello -- with Agostini
even ripping a Band-Aid from Manganiello's finger. Manganiello
was photographed, had his hands swabbed, and was placed in a cell.
Manganiello had been left wearing only his pants and a tank top,
and he asked to have more of his clothes returned because the cell
was cold; Agostini just laughed at him.

No gunshot residue was found on Manganiello's hands, and
Agostini was instructed by his supervisors that there was no
probable cause for Manganiello's arrest. Manganiello was released
at 5 a.m. the next morning. He was given back his clothing, but

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Agostini, shoving him toward the exit, refused to allow him to put
the laces in his shoes before leaving the station house.

Agostini never followed up on the information given to him
by Manganiello as to persons who had previously threatened or
assaulted Acosta. Nor did he pass that information to the
assistant district attorney in charge of the case (the "ADA") .

Two days after the shooting, however, Agostini met with
Terrence Alston, a member of the Bloods gang who had been in jail
since some four months before the Acosta shooting but who claimed
to have relevant information. Alston told Agostini that
Manganiello had tried to hire Alston to kill a Parkchester
security guard. (Manganiello testified in the present case that
he had never met or spoken with Alston.) Alston also told
Agostini that a friend named Johnny Baker had sold Manganiello a
. 22 caliber gun -- the caliber of the gun used to shoot Acosta.
When Agostini interviewed Baker, however, Baker credibly told
Agostini that Alston had lied. When Agostini confronted Alston
about this lie, Alston became angry and told Agostini not to
interview witnesses produced by Alston unless Alston was present.
Alston promised that if he were released from jail, he would,
within four weeks, produce another witness for Agostini. Agostini
viewed Alston as "playing games" to get out of jail (Tr. 256
(internal quotation marks omitted) ), but he testified at trial in
the present case that it did not occur to him that Alston might be
planning to intimidate prospective witnesses when Alston said

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Agostini was not to interview them in Alston's absence (see id. at
252) .

Approximately two weeks after the homicide, Agostini
received information from a taxi driver who reported overhearing a
passenger, Alfred Vasquez, say on a cell phone that Vasquez had
seen a security officer get shot and was the only one who had seen
the shooter. Agostini located and questioned Vasquez, who said
that although he had made such a statement, it was simply a
fabrication. Agostini accepted Vasquez's response without making
any further inquiries, apparently neither confirming Vasquez's
whereabouts at the time of the shooting nor having Vasquez's
fingerprints compared against those found at the scene.

On March 1, 2001, Agostini created a document that
suggested that when Acosta was shot at 1700 Metropolitan,
Manganiello was in the building. It is undisputed that, earlier
on the morning of the shooting, Manganiello had responded to a
call reporting a disturbance in that building. Three members of
NYPD, including Officers Eric Rodriguez and [FNU] Ortiz, had also
responded. Rodriguez and Ortiz were interviewed, on the night of
the shooting, by NYPD Detective Richard E. Martinez, who reported
in an NYPD Follow-Up form -- known as a "DD5" -- that Rodriguez and
Ortiz stated that Manganiello left the building with them. In
Agostini's March 1 DD5, Agostini said that no one had seen
Manganiello leave the building.

Some two weeks after Agostini discovered that Alston had
lied to him about Johnny Baker, Agostini and Martinez approached

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one Michael Booth, knowing that Booth was engaged in the unlawful
activities of bookmaking and/or loan sharking. Agostini said he
had information that a Parkchester security officer had tried to
buy a gun from Booth. Booth at first refused to endorse that
information; but Agostini and Martinez took him to the police
station, searched him, and found a knife and betting slips
bearing names and monetary amounts in his pockets. Agostini
threatened to report Booth to the NYPD organized crime bureau.
Only then did Booth agree to sign a statement to the effect that
Manganiello had tried to buy a gun from him. (Manganiello
testified at trial in the present case that he had never had such
a conversation with Booth.)

After Booth signed the statement, the detectives gave him
back his knife, and he left the police station. No charges were
filed against him; the gambling slips were placed in the Acosta
murder case file maintained by Agostini -- which later disappeared --
and Booth's name was not given to the organized crime bureau.
Agostini gave Booth's statement to the ADA, who ultimately called
Booth as a witness at the murder trial to testify that Manganiello
had tried to buy a gun from him. In the present case, the ADA
testified that she had not authorized Agostini or anyone else to
withhold criminal charges against Booth in exchange for
implicating Manganiello. (See Tr. 638.)

With respect to Alston, Agostini testified that he did not
note in any of his DD5s his belief that Alston was playing games
26 or that Alston wanted to be present when witnesses Alston

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produced were interviewed; nor did he mention to the district
attorney's office Alston's insistence on being present at such
interviews. The ADA, who testified that Agostini did not raise
any concerns with her that, in order to get out of jail, Alston
was "making up stories" (Tr. 647), arranged for Alston's release
from jail "in exchange for his testimony against [Manganiello] "
(id.). On April 5, 2001, after his release, Alston produced a
teenager, Mark Damon, who told Agostini and the ADA that, in
January 2001, Damon had sold Manganiello a gun. (Manganiello
testified in the present case that he had not bought a gun from
anyone in January 2001 and had never met Damon.) Agostini
testified in the present case that he "knew that Alston had
provided [him with] false information, " and he "didn't know
whether [Alston] was believable or not believable." (Id. at 247.)
Agostini said, "He gave me false information . . . once, but then
he gave me the right information . . . the second time." (Id. at
248.)

The information given "the second time" also proved to be
false. Prior to Manganiello's trial in 2004, Alston died, and
Damon recanted his statement that he had sold Manganiello a gun.
At trial in the present case, Agostini admitted that Alston had
"asked Damon to lie about Anthony Manganiello." (Id. at 330; see
also id. at 261 (Damon, in recanting, said "Alston[ had] made him
say it. ") (internal quotation marks omitted) . )

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In the meantime, on April 20, 2001, Manganiello was
arrested on a felony complaint signed by Agostini. On May 7,

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2001, following testimony from Agostini, Alston, and several other
witnesses, the grand jury indicted Manganiello on two counts of
murder in the second degree and one count each of manslaughter and
criminal possession of a weapon.

Thereafter, the case file on the Acosta murder
disappeared. It had contained, inter alia, handwritten notes by
detectives of their interviews, including some that might have
contradicted the grand jury testimony of certain witnesses. For
example, one such witness was Walter Cobb, a porter at 1700
Metropolitan. Before the grand jury, Cobb testified that he was
outside the building on the morning of February 12, 2001, when he
heard shots, and that "almost immediately" (Tr. 93 (internal
quotation marks omitted) ), as he was about to unlock the basement
door, it "flew open" (id. (internal quotation marks omitted) ) and
Manganiello came out. That testimony was partially inconsistent
with a DD5 prepared by Detective Martinez based on his interview
of Cobb, in that Cobb told Martinez he did not have a key for the
basement door; and it apparently differed in a more important
respect from statements Cobb had made to NYPD Officer Alex Perez
shortly after the shooting. Perez had responded to the "officer
down" radio call; and after briefly canvassing the basement, he
had gone outside and encountered Cobb, who described hearing
gunshots. Cobb told Perez he saw Manganiello "five minutes" after
hearing the gunshots. (Id. at 521-22.) Perez himself was
interviewed that evening by Martinez, and Perez did not tell
Martinez that Cobb had seen Manganiello leaving the basement.

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(See id. at 526-27.) Thus, Martinez testified that according to
his DD5 on his interview of Perez, which Martinez gave to Agostini
along with his handwritten notes of the interview, "Cobb didn't
say anything to Officer Perez about Mr. Manganiello coming out of
a basement door." (Id. at 403.)

Agostini apparently did not call the discrepancies in
Cobb's statements, e.g., as to where and when Cobb first saw
Manganiello after the shooting, to the attention of the ADA.
Although the ADA testified at trial in the present case that,
before calling Cobb to the grand jury, she had been informed
"about all of Mr. Cobb's statements" (id. at 622), her prior
deposition testimony was that she did not recall being made aware
of a number of discrepancies in the statements Cobb made to
various officers, including that Cobb originally did not say he
saw Manganiello exit the basement seconds after he heard the shots
(id. at 623-24) .

Agostini, as the lead detective on the Acosta homicide,
had responsibility for maintaining all the reports and evidence
produced during the investigation and securing them for trial.
When detectives completed their DD5s, they gave them to Agostini,
along with their handwritten notes of their interviews. The notes
were to be maintained in the case file in order to preserve the
ability of the accused to cross-examine the witnesses at trial.
In the present case, the DD5s were photocopied by the district
attorney's office, which maintained copies and returned the
originals to Agostini. Those originals, along with all of the

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handwritten notes, the arrest report, the results of the gunshot
residue tests, and everything else in the case file (including
Booth's incriminating betting slips), disappeared prior to
Manganiello's trial.

At various times Agostini gave conflicting testimony
about, inter alia, where he had stored the case file before it
disappeared. In a deposition in the present case, he testified
that he had last left the box under his desk; at trial in the
present case, he testified he had last left it on top of a locker
in the detectives' locker room.

In addition, Agostini testified that he had at one point
given the entire case file to the ADA. This was contradicted both
by Agostini's testimony at a pretrial hearing in the criminal
case that he had not given the ADA his handwritten notes, and by
the testimony of the ADA at trial in the present case. The ADA
testified that she had represented to the trial judge in the
criminal case that she never had possession of the homicide case
file. When she asked for the file, it had disappeared. The ADA
also testified that Agostini did not give her copies of the
handwritten interview and investigative notes. Thus, in the
criminal case -- as in the present case -- Manganiello was not able to
obtain some of the investigative materials to which he was
entitled.

One document that was not lost was a note that Agostini
had found in a search of Manganiello's locker at the Parkchester.
At a pretrial hearing in the criminal case, Agostini testified

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that Manganiello's note said "I feel like killing somebody. " The
note actually said, "I pray every day I will never have to kill
someone." (Tr. 266-67.)

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The jury in the criminal case found Manganiello not guilty
on all counts.

B. The Denial of Agostini's Motion for Judgment as a Matter of Law
As indicated above, the jury in the present case, to the
extent pertinent to this appeal, found Agostini liable to
Manganiello for malicious prosecution and found that Agostini
"misrepresented the evidence to the prosecutors, or failed to
provide the prosecutor with material evidence or information, or
gave testimony to the Grand Jury that was false or contained
material omissions, and . . . knew that he . . . was making a
material misrepresentation or omission or giving false testimony"
(Verdict Sheet | 2 (emphasis in original) ). The jury found
Manganiello entitled to compensatory damages totaling $1, 426,261.
Although the jury found that Abate was responsible for 10 percent
of that amount, the district court ruled that Abate was entitled
to qualified immunity because the jury found that he either had
not made false statements or misrepresentations, etc., or, if he
had, that he had not done so knowingly. The court also ruled
that, in light of the joint and several liability imposed on
joint tortfeasors, Agostini is liable to Manganiello for the
entire $1,426, 261.

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In connection with its initial verdict, the jury was also
asked to decide whether punitive damages were appropriate,
although not to determine an amount. It responded affirmatively.
After Abate was dismissed from the case on the ground of qualified
immunity, the jury was reconvened and heard argument on the
question of the amount of punitive damages Agostini (in his
individual capacity) should pay. It determined that that amount
was $75,000.

Following the jury's initial verdict, Agostini had moved
for judgment as a matter of law, arguing principally that one
element of a claim of malicious prosecution is that probable cause
for the prosecution was lacking; that a grand jury indictment
creates a presumption that probable cause existed; and that
Manganiello failed to present evidence of fraud, perjury, or other
misconduct on the part of Agostini that could demonstrate that the
grand jury's indictment was the result of bad-faith police conduct
sufficient to rebut that presumption. Agostini also argued that
Manganiello failed to present sufficient evidence of two other
elements of a malicious prosecution claim, i.e., that Agostini was
responsible for the initiation of the criminal case or that he had
acted with malice. Alternatively, Agostini sought judgment as a
matter of law on the ground that he was entitled to qualified
immunity.

In an exhaustive discussion in Manganiello II, thoroughly
annotated with citations to the trial transcript, the district
court rejected each of Agostini's contentions and denied the

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motion. Based principally on the evidence described in Part I.A.
above, the court found that "Manganiello provided enough evidence
at trial that a reasonable juror could conclude that Agostini
failed to make a complete and full statement of facts to the
District Attorney, misrepresented or falsified evidence, withheld
evidence or otherwise acted in bad faith." Manganiello II, 2008
WL 5159776, at *2 (internal quotation marks omitted) . The Court
concluded that the jury reasonably found that Manganiello had
"successfully rebutted the presumption of probable cause that was
created by the grand jury indictment." Id. at *5. The district
court ruled that that evidence was also sufficient to permit the
jury to find that probable cause was actually lacking.

The court found that there was likewise sufficient
evidence of the other elements of a malicious prosecution claim.
It found that "there was enough evidence for the jury to
reasonably conclude that Agostini commenced or initiated the
criminal prosecution" because he "provided the District Attorney's
office with all the information that led to the authorization for
Manganiello's arrest" and "signed the felony complaint." Id.
at *6. As to malice, the court noted that " ' [m]alice may be shown
by proving that the prosecution complained of was undertaken from
improper or wrongful motives, or in reckless disregard of the
rights of the plaintiff, '" id. at *7 (quoting Pinsky v. Duncan, 79
F.3d 306, 313 (2d Cir. 1996) ). It found that the jury could have
found malice on the part of Agostini from the lack of probable
cause, see Manganiello II, 2008 WL 5159776, at *7, as well as from

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Agostini's harsh treatment of Manganiello at the time of his
initial arrest and Agostini's evident pique at being instructed to
release Manganiello at that time, see id. at \*10 -\* 11.

With respect to Agostini's motion for judgment as a matter
of law on the ground of qualified immunity, the district court
again noted the jury's findings that Agostini had misrepresented
the evidence to prosecutors, or had withheld material evidence or
information from the prosecutor, or had given testimony to the
grand jury that was false or materially misleading "and knew that
he was making a material misrepresentation or omission or giving
false testimony, " Manganiello II, 2008 WL 5159776, at *8 (emphasis
in original) . The court concluded that, in light of these facts,
"it would not have been objectively reasonable for Agostini to
believe that his actions or omissions" did not violate
Manganiello's "clearly established constitutional rights. Put
another way, there could be no disagreement among officers of
reasonable competence that [Agostini's] conduct was unlawful. "
Id.

Agostini also moved, in the alternative, for a new trial
on various grounds. As discussed in Part III below, the district
court denied that motion as well.

On appeal, Agostini pursues his contentions that he was
entitled to judgment as a matter of law on the grounds of
qualified immunity or insufficient evidence to prove the claim of
malicious prosecution, and, alternatively, that he is entitled to

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1 a new trial. For the reasons that follow, we find none of his

2
contentions persuasive.

II. THE DENIAL OF JUDGMENT AS A MATTER OF LAW

In order to prevail on a § 1983 claim against a state
actor for malicious prosecution, a plaintiff must show a violation
of his rights under the Fourth Amendment, see, e.g., Murphy v.
Lynn, 118 F.3d 938, 944 (2d Cir. 1997), cert. denied, 522 U.S.
1115 (1998) ; Rohman v. New York City Transit Authority, 215 F.3d
208, 215 (2d Cir. 2000), and must establish the elements of a
malicious prosecution claim under state law, see, e.g., Murphy v.
Lynn, 118 F.3d at 944; Russell v. Smith, 68 F.3d 33, 36 (2d Cir.
1995) ; Janetka v. Dabe, 892 F.2d 187, 189 (2d Cir. 1989). To
establish a malicious prosecution claim under New York law, a
plaintiff must prove "' (1) the initiation or continuation of a
criminal proceeding against plaintiff; (2) termination of the
proceeding in plaintiff's favor; (3) lack of probable cause for
commencing the proceeding; and (4) actual malice as a motivation
for defendant's actions. '"
Murphy v. Lynn, 118 F.3d at 947
(quoting Russell v. Smith, 68 F.3d at 36) ; see Broughton v. State,
37 N. Y.2d 451, 457, 373 N.Y.S.2d 87, 94, cert. denied, 423 U.S.
929 (1975) .

In considering a motion for judgment as a matter of law,
the district court

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"must draw all reasonable inferences in favor of the
nonmoving party, and it may not make credibility

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determinations or weigh the evidence
Credibility determinations, the weighing of the
evidence, and the drawing of legitimate inferences
from the facts are jury functions, not those of a
judge. . . . Thus, although the court should review
the record as a whole, it must disregard all evidence
favorable to the moving party that the jury is not
required to believe. "

Zellner v. Summerlin, 494 F.3d 344, 370 (2d Cir. 2007) ("Zellner")
(quoting Reeves v. Sanderson Plumbing, 530 U.S. 133, 150-51 (2000)
(other internal quotation marks omitted) (emphases in Zellner) ) .
We review a district court's denial of a motion for judgment as a
matter of law de novo. "In so doing, we apply the same
standard [s] that [are] required of the district court." Zellner,
494 F.3d at 371. Under these standards, Agostini plainly was not
entitled to judgment as a matter of law.

## A. Probable Cause

Although the existence of probable cause must be
determined with reference to the facts of each case, in general
" [p]robable cause to arrest exists when the officers have
knowledge of, or reasonably trustworthy information as to, facts
and circumstances that are sufficient to warrant a person of
reasonable caution in the belief that an offense has been or is
being committed by the person to be arrested." Zellner, 494 F.3d
at 368 (citing, e.q., Dunaway v. New York, 442 U.S. 200, 208 n.9
(1979) ; Wong Sun v. United States, 371 U.S. 471, 479 (1963) ;
Brinegar v. United States, 338 U.S. 160, 175-76 (1949) ). Probable
cause may also exist where the officer has relied on mistaken
information, so long as it was reasonable for him to rely on it.

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See, e.g., Hill v. California, 401 U.S. 797, 803-04 (1971) .
However, "the failure to make a further inquiry when a reasonable
person would have done so may be evidence of lack of probable
cause." Colon v. City of New York, 60 N. Y.2d 78, 82, 468 N.Y.S.2d
453, 455 (1983). The existence of probable cause must be
determined by reference to the totality of the circumstances.
See, e.g., Illinois v. Gates, 462 U.S. 213, 238 (1983) .

" [T]he existence of probable cause is a complete defense
to a claim of malicious prosecution in New York, " Savino v. City
of New York, 331 F. 3d 63, 72 (2d Cir. 2003) , and "indictment by a
grand jury creates a presumption of probable cause, " id. That
presumption may be rebutted only "by evidence that the indictment
was procured by 'fraud, perjury, the suppression of evidence or
other police conduct undertaken in bad faith. '" Id. (quoting
Colon v. City of New York, 60 N.Y.2d at 83, 468 N. Y. S.2d at 456) .
Where there is some indication in the police records that, as to a
fact crucial to the existence of probable cause, the arresting
officers may have "lied in order to secure an indictment, " and "a
jury could reasonably find that the indictment was secured through
bad faith or perjury, " the presumption of probable cause created
by the indictment may be overcome. Boyd v. City of New York, 336
F.3d 72, 77 (2d Cir. 2003). "Like a prosecutor's knowing use of
false evidence to obtain a tainted conviction, a police officer's
fabrication and forwarding to prosecutors of known false evidence
works an unacceptable 'corruption of the truth-seeking function of
the trial process. '" Ricciuti v. N. Y.C. Transit Authority, 124

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F.3d 123, 130 (2d Cir. 1997) ( "Ricciuti") (quoting United States
v. Aqurs, 427 U.S. 97, 104 (1976)) .

As set out in Part I above, the jury in the present case
found that Agostini had engaged in at least one of those forms of
misconduct and had done so knowingly. We see no error in the
district court's ruling that there was ample evidence to support
the jury's findings. The evidence described above included, for
example, Agostini's misrepresentation in one of his DD5s that,
after Manganiello responded to a report of a disturbance at 1700
Metropolitan on February 12, 2001, prior to the shooting of Acosta
in the basement of that building, no one had seen Manganiello
leave the building. In fact, a DD5 prepared by Martinez, and
given to Agostini as leader of the investigative team, reported
that two NYPD officers who had also responded to that disturbance
stated that Manganiello left the building with them.

In addition, although there was evidence that Manganiello
had informed Agostini of two prior instances in which Acosta had
been assaulted or threatened by members of the Bloods or by other
local thugs, Agostini's DD5 on his interrogation of Manganiello
stated that when he asked Manganiello "if anyone he knows has any
problems with" Acosta, "Manganiello would not answer. "
(Plaintiff's Exhibit 33.)

Agostini apparently made no effort to follow up on the
information Manganiello gave him. The record also indicates that
Agostini made only the most superficial and credulous of inquiries
of the taxi passenger who had been overheard telling someone he

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had been present at the shooting and had seen the shooter. And
the jury could infer that Agostini coerced a false statement about
Manganiello from Booth in exchange for not reporting Booth to the
organized crime bureau.

Further, it was permissible for the jury, on the evidence
before it, to find that Agostini used Alston to inculpate
Manganiello with no concern whatever for whether Alston's
statements were truthful. It was clear that Agostini promoted
Alston to the ADA as a witness against Manganiello despite knowing
that Alston had already lied to him about Manganiello at least
once; and it was clear that Agostini in his paperwork -- some of
which was sent to the ADA and would have been subject to discovery
by Manganiello prior to the criminal trial -- did not mention
Agostini's belief that Alston was "playing games." In addition,
given Alston's angry criticism of Agostini for interviewing Baker
without Alston being present and Alston's insistence that any
future alleged witness not be interviewed by Agostini in Alston's
absence, the jury was entitled (a) to disbelieve Agostini's
testimony that he had no suspicion that Alston was planning to
continue fabricating evidence, and (b) to infer that Agostini did
not inform the ADA of Alston's insistence because Agostini knew
that if the ADA were aware of it she would question the veracity
of statements thus procured.

In sum, looking at the evidence as a whole, the jury could
permissibly infer that Agostini was determined simply to make a
case against Manganiello, and that in order to do so Agostini

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refrained from making inquiry into other possible suspects,
ignored evidence that was inconsistent with his belief that
Manganiello was guilty, declined to inform the ADA of, or to
document, any exculpatory evidence or inconsistencies in the
statements of witnesses who agreed to inculpate Manganiello,
secured one statement inculpating Manganiello by agreeing not to
disclose the witness's known criminal activities to the proper
authorities, and included in some of Agostini's own reports
supposedly factual statements adverse to Manganiello that were
contradicted by persons having first-hand knowledge of the facts.
The evidence amply supported the jury's finding that Agostini had
engaged in misconduct and supported the conclusions both that the
presumption of probable cause created by the grand jury
indictment was rebutted and that probable cause was lacking.

## B. Other Elements of Malicious Prosecution

Agostini also contends that he was entitled to judgment as
a matter of law on the basis that Manganiello failed to establish
that Agostini had caused the initiation or the continuation of the
criminal proceeding and failed to establish that Agostini had
acted with actual malice. Again, we disagree.

To initiate a prosecution, a defendant must do more than
report the crime or give testimony. He must "play [] an active
role in the prosecution, such as giving advice and encouragement
or importuning the authorities to act." Rohman v. New York City
Transit Authority, 215 F.3d at 217 (internal quotation marks

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omitted) . A jury may permissibly find that a defendant initiated
a prosecution where he "fil [ed] the charges" or "prepar [ed an]
alleged false confession and forward [ed] it to prosecutors."
Ricciuti, 124 F.3d at 130. Here, there was sufficient evidence
from which the jury could infer that Agostini, inter alia,
actively elicited inculpatory statements from witnesses such as
Alston and Booth, whose veracity in making such statements was
circumstantially suspect; that Agostini forwarded those statements
to the ADA; that Agostini was in touch with the ADA at least once
a week; and that Agostini signed the felony complaint on which
Manganiello was ultimately rearrested. This sufficed to satisfy
the initiation-or-continuation element.

Finally, we also agree with the district court that the
evidence was ample to permit an inference that Agostini proceeded
15 against Manganiello with malice. First, " [a] lack of probable
cause generally creates an inference of malice." Boyd v. City of
New York, 336 F.3d at 78; see, e.g., Ricciuti, 124 F.3d at 131;
Lowth v. Town of Cheektowaga, 82 F.3d 563, 573 (2d Cir. 1996) .
Further,

malice may be shown by proving that the prosecution
complained of was undertaken from improper or
wrongful motives, or in reckless disregard of the
rights of the plaintiff.

Pinsky v. Duncan, 79 F.3d 306, 313 (2d Cir. 1996) (internal
quotation marks omitted) ; see also Lowth v. Town of Cheektowaga,
82 F.3d at 573 (malice may be proven by showing that the
prosecutor had "a wrong or improper motive, something other than a

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desire to see the ends of justice served" (internal quotation
marks omitted) ) .

Malice on the part of Agostini could easily be inferred in
light of the evidence in the present case of, inter alia,
Agostini's apparently myopic focus on Manganiello, to the
exclusion of all other suspects; Agostini's otherwise seemingly
inexplicable false statements about Manganiello's conduct that
were contrary to the reported first-hand knowledge of others;
Agostini's willingness to coerce an inculpatory statement from one
unwilling person in exchange for not reporting that person's known
criminal activities; and his willingness to have Manganiello
indicted on the basis of testimony of another person who was known
to have lied to Agostini at least once in this very matter and who
was evidently willing to intimidate others into falsely providing
the evidence Agostini sought. The jury was entitled to find that
Agostini's adherence to the view that Alston, in producing Damon,
had given Agostini the "right" information (Tr. 248), while
Agostini admitted that Alston had "asked Damon to lie about
Anthony Manganiello" (id. at 330), was reflective of, in the words
of Lowth, "something other than a desire to see the ends of
justice served. "

It was also understandably difficult for the jury to
fathom an appropriate explanation for Agostini's
misrepresentation, in the course of the criminal proceeding, of
the contents of the note he had found in Manganiello's locker. To
testify that Manganiello's note stating "I pray every day I will

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never have to kill someone" instead said "I feel like killing
somebody" (Tr. 266-67) cannot be viewed as better than a reckless
disregard of Manganiello's rights. Although that statement was
made after the initiation of the criminal proceeding, the jury was
entitled, especially in light of the other evidence as to
Agostini's conduct of the investigation, to view that
misrepresentation as indicative of Agostini's state of mind all
along.

## C. Qualified Immunity

A government official sued in his individual
capacity is entitled to qualified immunity (1) if the
conduct attributed to him was not prohibited by
federal law, see, e.g., County of Sacramento v.
Lewis, 523 U.S. 833, 841 n. 5, 118 S.Ct. 1708, 140
L. E.2d 1043 (1998) ; Siegert v. Gilley, 500 U.S. 226,
232, 111 S.Ct. 1789, 114 L.E.2d 277 (1991) ; or (2)
where that conduct was so prohibited, if the
plaintiff's right not to be subjected to such conduct
by the defendant was not clearly established at the
time it occurred, see, e.g., Harlow v. Fitzgerald,
457 U.S. 800, 817-19, 102 S.Ct. 2727, 73 L.E.2d 396
(1982) ; or (3) if the defendant's action was
"objective [ly] legal [ly] reasonable [] . . . in light
of the legal rules that were clearly established at
the time it was taken." Anderson v. Creighton, 483
U.S. 635, 639 (1987), 107 S.Ct. 3034, 97 L.E.2d 523
(internal quotation marks omitted)

Munafo v. Metropolitan Transportation Authority, 285 F.3d 201, 210
(2d Cir. 2002). Only the third aspect of the qualified immunity
doctrine was genuinely at issue in the present case, for

" [f] reedom from malicious prosecution is a constitutional right
that has long been clearly established." Kinzer v. Jackson, 316
F.3d 139, 143 (2d Cir. 2003) .

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"Whether a defendant officer's conduct was objectively
reasonable is a mixed question of law and fact." Zellner, 494
F.3d at 367. The factfinder must determine any disputed material
facts, and on the basis of the facts permissibly found, the court
must decide "whether it was objectively reasonable for the officer
to believe that his conduct did not violate a clearly established
right, i.e., whether officers of reasonable competence could
disagree as to the lawfulness of such conduct." Id.

Although a mere mistake in the performance of an official
duty may not deprive the officer of qualified immunity, the
doctrine does not shield performance that either (a) was in
violation of clearly established law, or (b) was plainly
incompetent. See, e.g., Hunter v. Bryant, 502 U.S. 224, 229
(1991) ("The qualified immunity standard 'gives ample room for
mistaken judgments' by protecting 'all but the plainly incompetent
or those who knowingly violate the law. '" (quoting Malley v.
Briggs, 475 U.S. 335, 343, 341 (1986))). With respect to both the
legal question and the matter of competence, the officials'
actions must be evaluated for objective reasonableness. Thus, the
doctrine shields officers from suit for damages if "'a reasonable
officer could have believed'" his action "'to be lawful, in light
of clearly established law and the information [he] possessed. '"
Hunter, 502 U.S. at 227 (quoting Anderson v. Creighton, 483 U.S.
635, 641 (1987) ) . That is, "[e]ven if the right at issue was
clearly established in certain respects
an officer is still

entitled to qualified immunity if 'officers of reasonable

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competence could disagree' on the legality of the action at issue
in its particular factual context." Walczyk v. Rio, 496 F.3d 139,
154 (2d Cir. 2007) (quoting Malley, 475 U.S. at 341) .

In the present case, given the jury's findings that
Agostini misrepresented the evidence to the prosecutors, or failed
to pass on material information, or made statements that were
false, and engaged in such misconduct knowingly, and given the
ample evidentiary support for those findings, the district court
correctly concluded that no reasonable officer could have believed
Agostini's actions to be lawful. Agostini's motion for judgment
as a matter of law based on qualified immunity was properly
denied.

### III. DENIAL OF THE MOTION FOR A NEW TRIAL

Agostini contends that the district court should at least
have granted him a new trial, arguing principally that the court
(a) erroneously instructed the jury that it was permitted to draw
an inference adverse to Agostini as to the contents of the missing
criminal case file, (b) inappropriately curtailed defense
counsel's summation, (c) failed to find the jury's verdict
excessive, and (d) improperly interrupted the questioning of the
witnesses and made inappropriate comments during the trial.

The district court's denial of a Rule 59 motion for a new

trial

reviewed

for

abuse

discretion.

See,

e.g.,

AMW

Materials

Testing,

Inc.

v. Town

Babylon, 584

F.3d

436, 456

(2d

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Cir. 2009). A district court has abused its discretion if it has
(1) "based its ruling on an erroneous view of the law, " (2) made
"a clearly erroneous assessment of the evidence, " or (3) "rendered
a decision that cannot be located within the range of permissible
decisions." Sims v. Blot, 534 F.3d 117, 132 (2d Cir. 2008)
(internal quotation marks omitted) . For the reasons that follow,
we find no basis for reversal here.

## A. The Adverse Inference Instruction

As discussed in Part I.A. above, the case file in
Manganiello's criminal proceeding disappeared prior to his trial
and was never found. The court in the present case gave the jury
an instruction that stated, in part,

[i]f you find that a party could have produced
documents or other evidence in this lawsuit, and that
such evidence was at one time within that party's
control or in his or her custody, and that this
evidence would have been relevant in deciding facts
in dispute in this lawsuit, you are permitted, but
not required, to infer that the evidence, if
produced, would have been unfavorable to that party.

(Tr. 782-83 (emphasis added) .) Agostini contends that this
instruction should not have been given, arguing principally that
Manganiello did not establish that Agostini had custody or control
over the homicide file when it was lost or misplaced, or that
Agostini had an obligation to preserve the file at that time, or
that the files were destroyed with a culpable state of mind, or
that the missing documents were relevant. We disagree.

The suggestion that none of the missing documents would
have been relevant here is belied by the various discrepancies,

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discussed in Parts I.A. and II.A. above, among versions of the
conduct attributed to Manganiello. For example, the record
contains DD5s indicating divergent statements by Cobb, the only
witness whose testimony -- consistent with most of the DD5 on
Martinez's interview of Cobb -- placed Manganiello in the basement
at the time of the shooting. Yet from Martinez's DD5 on his
interview with Perez, it is inferable that Cobb did not tell
Perez, the first officer to question him at the scene of the
crime, that the basement door had burst open seconds after the
shot and that he saw Manganiello emerge from the basement, for it
seems inconceivable that Perez would not have included that
information when he was interviewed by Martinez. And it seems
unlikely that Cobb would have failed to describe such a startling
sequence of events to Perez immediately after the incident if the
incident was as Cobb eventually described it to the grand jury.
The handwritten notes made prior to the preparation of the various
DD5s may have contained clarifying information that was not
incorporated in the DD5s, including information as to the
provenance of the variations in the versions given by Cobb.

The contention that Agostini had no obligation to preserve
the case file is frivolous. The case file had been committed to
his custody as the leader of the investigative team, and Agostini
admitted at trial that it was his responsibility to preserve the
evidence until the time of trial (see Tr. 235-36; see also id. at
612 (similar testimony of the ADA) ) . Agostini's contention that
the case file -- which he left under his desk or on top of a

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locker -- was not under his control amounts to no more than an

inappropriate attempt to abdicate his responsibility for its
preservation. Although Agostini testified at trial that he had
removed the case file from a room in which such files were
normally kept because that room was being "clean [ed]
out "
(id. at 242), he gave no reason for not putting the case file in
some other safe place -- other than his explanation that the papers
were in a box, and the box itself was too large to fit into a
secure file cabinet (see id. at 241-42; (id. at 242 ("It was just
too big of a box. ") ) .

In addition to instructing the jury that it could, but was
not required to, draw an inference that missing files would have
contained information adverse to the party who had and lost them,
the court told the jury that

[i]n deciding whether to draw this inference,
you should consider whether the evidence that was not
produced would merely have duplicated other evidence
already introduced. You may also consider whether
the party has offered a reason for not producing this
evidence, and whether that reason was explained to
your satisfaction.

(Tr. 783.) We see no error or abuse of discretion in the giving
of these instructions.

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## B. The Exhibits and the Defense Summation

Agostini complains that the district court improperly
allowed Manganiello to interrupt the defense summation and
prevented defense counsel from making points to the jury with
regard to certain DD5s, marked for identification as defendants'

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exhibits "P-2" and "Z-7." The record reflects an unusual amount
of confusion among the parties and the court but reveals no error
by the court and no prejudice to Agostini.

During the trial, the court had admitted in evidence a
number of documents offered by the defendants. Thereafter, in a
colloquy not characterized by clarity, defense counsel stated,
"your Honor, defendants would just enter into evidence the
remaining DD5s which have yet to be entered into evidence, which I
can read if your Honor requires" (Tr. 326) ; the court responded,
"We will just get a list later" (id. (emphasis added) ) ; and
Manganiello's attorney said, "For the record, Judge, we stated the
objections that were previously stated" (id.). Defense counsel
did not, however, supply the court with a list as requested by the
court (see id. at 765-66) , and "P-2" and "Z-7" were not among the
documents shown in the trial transcript to have been admitted in
evidence before the commencement of summations.

During his summation, defense counsel asked the jury to
consider "P-2" and "Z-7, " and Manganiello objected on the ground
that they had not been admitted in evidence. As asking the jury
to consider documents that are not in evidence is improper, the
court instructed defense counsel not to refer to "P-2" and "Z-7"
and stated that those documents would not be given to the jury
unless and until there was a determination that they were
admitted in evidence. (See id. at 705-07.)

Following the completion of summations, the court
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not admitted "P-2" and "Z-7" during the testimony of any witness,
as no witness had mentioned them and they had not been shown to
any witness; and it had not admitted them as part of defense
counsel's proposed admission of DD5s in bulk because defendants
had not submitted to the court the required list of such
documents. Nonetheless, given the confusion, the court decided at
the post-summation conference to admit "P-2" and "Z-7" in
evidence. Accordingly, when the jury asked to see those documents
during its deliberations, they were given to the jury.

Agostini complains that the court did not also allow
defense counsel to reopen his summation to review those documents
with the jury. Such a matter is committed to the discretion of
the trial court, and we see no abuse of discretion here. "P-2"
and "Z-7" apparently had not been admitted in evidence at the time
of the summations, and the defense bears some or all of the
responsibility for the confusion as to whether they were in
evidence and for the fact that they were not. It was well within
the court's discretion to decline to allow the defense summation
to be reopened.

C. The Challenge to the Amount of the Jury's Verdict

Agostini contends that the jury's award of $1,426,261 in
compensatory damages was excessive and that the district court
should have ordered a remittitur or a new trial. We are
unpersuaded, as a jury's damages award may not be set aside unless
"'the award is so high as to shock the judicial conscience and

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constitute a denial of justice, '" O'Neill v. Krzeminski, 839 F.2d
9, 13 (2d Cir. 1988) (quoting Zarcone v. Perry, 572 F.2d 52, 56
(2d Cir. 1978) ) .

The record in the present case included evidence that
Manganiello, age 38 at the time of his arrest -- and age 42 by the
time he was acquitted -- had, among other things, been discharged
from his job at the Parkchester, been discharged from his part-
time job as a state park policeman, and been stripped by the City
of his special patrol officer certifications; and he was past the
age at which he could reenter the police academy to re-earn such
certifications. Further, in the wake of his arrest, Manganiello,
who had had no prior history of psychiatric problems, became
agoraphobic and subject to frequent panic attacks, dizziness, and
nausea. Dr. Rehana Latif, the psychiatrist who treated
Manganiello during the seven years between his arrest and the
trial in the present case, diagnosed Manganiello with post-
traumatic stress disorder and major depression, and she testified
that the severe stress caused him to have a chemical imbalance.

Dr. Latif testified that the chemical imbalance

ha [d] permanently disabled him and his prognosis is
poor to fair. (Tr. 679, 680-85.) She further
testified that Manganiello is unable to pursue any
work because his cognitive functioning, emotions,
concentration, understanding and energy levels are
too impaired. (Tr. 679, 680, 684.)

Manganiello II, 2008 WL 5159776, at *18; see also id. ("Dr. Latif
testified that Manganiello suffered from moderate to severe panic
attacks, which caused him to be unable to function in any capacity
or to work. (Tr. 675-77. ) ") . Manganiello's "expert economist []

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calculated Manganiello's pecuniary losses conservatively. "
Manganiello II, 2008 WL 5159776, at *19. The economist (a)
calculated that Manganiello's lost past earnings amounted to
$377, 000; and (b) assuming that Manganiello would have retired at
age 61.5, and discounting future lost earnings to present value,
calculated Manganiello's lost future earnings to be $829,000. Id.
The court noted that defendants had not presented any evidence to
rebut the testimony of either the psychiatrist or the economist.

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The court noted that "Manganiello was also entitled to recover the
$110, 000 in attorneys' fees that he paid for his criminal defense,
which he would not have had to pay but for the malicious
prosecution." Id.

Thus, the court found that the record supported an award
of more than $1, 310, 000 in pecuniary losses, and that that sum, as
well as the remainder of the jury's award, approximately $116, 600,
for the wrongful incarceration and humiliation, was

in line with the awards in the cases cited by
Agostini. See, e.g., Gentile v. County of Suffolk,
926 F.2d 142, 153 (2d Cir.1991) (affirming award of
$150,000 for pain and suffering, several days of
false imprisonment, psychological trauma, loss of job
opportunities and attorneys' fees). See also Papa v.
City of New York, 194 A.D.2d 527, 532, 598 N.Y.S.2d
558 (N. Y. App. Div. 1993) (lost earnings calculated to
be over $3 million in malicious prosecution case) .

Manganiello II, 2008 WL 5159776, at *19.

Given the evidence, we see no error in the district
court's conclusion that the jury's verdict was not so large as to
shock the judicial conscience.

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D. Allegedly Prejudicial Comments by the Court

Finally, Agostini contends that during the trial, the
court made prejudicial comments or asked questions that may have
had the effect of bolstering the testimony of witnesses for
Manganiello and suggesting to the jury that the court favored the
plaintiff's case. A "court must strive for 'that atmosphere of
perfect impartiality which is so much to be desired in a judicial
proceeding'
and must be especially cautious and
circumspect in language and conduct during a jury trial." Santa
Maria v. Metro-North Commuter R., 81 F.3d 265, 273 (2d Cir. 1996)
(quoting Glasser v. United States, 315 U.S. 60, 82 (1942) ).
" [A]sking numerous and probing questions of witnesses is
unquestionably proper, " although the "trial judge should limit
questioning to inquiries necessary to clarify ambiguities,
correct misstatements, or obtain information necessary to make
rulings." Shah v. Pan American World Services, Inc., 148 F.3d 84,
98 (2d Cir. 1998) (internal quotation marks omitted), cert.
denied, 525 U.S. 1142 (1999). Reversal may be appropriate if the
judge has expressed his "opinion on an ultimate issue of fact in
front of the jury or [has argued] for one of the parties, " id.
(internal quotation marks omitted) . Nonetheless, " [i]n reviewing
a challenge to a trial judge's conduct, we determine not whether
the trial judge's conduct left something to be desired, " but
rather, in light of the record as a whole, "whether the judge's
behavior was so prejudicial that it denied [a party] a fair, as
opposed to a perfect, trial." Id. (internal quotation marks

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omitted) ; see, e.g., United States v. Rosa, 11 F.3d 315, 343 (2d
Cir. 1993), cert. denied, 511 U.S. 1042 (1994); United States v.
Manko, 979 F.2d 900, 905-06 (2d Cir. 1992), cert. denied, 509 U.S.
4 903 (1993) .

We see no basis for reversal here. Although the court
asked questions and made comments, our review of the record
persuades us that the court was attempting to gain clarification
for the jury and to prevent the trial from becoming bogged down in
repetitious or inappropriate advocacy. And the court so informed
the jury. In denying Agostini's motion for a new trial on this
ground, the district court, after discussing the above principles
governing the conduct of a trial judge, noted in part that

[a]ll the questions that this Court posed to
witnesses were for clarification and due to the fact
that, in the case of Agostini, his testimony was
frequently contradictory and ambiguous and appeared
less than candid and forthcoming. In any event, the
jury was thoroughly instructed that they were not to
draw any inferences from the Court's questions :

I also ask you to draw no inference from
the fact that upon occasion I may have asked
questions of certain witnesses. Such questions
were only intended for clarifications or to
expedite matters and certainly were not intended
to suggest any opinion on my part as to the
verdict you should render or whether any of the
witnesses may have been more credible than any
other of the witnesses.

Manganiello II, 2008 WL 5159776, at *14 (quoting Tr. 772). The
court also instructed the jury to draw no inferences from the
court's rulings :

During the trial, I have been called upon to
make rulings on various questions. Those rulings are
not evidence and need not be considered by you.
Procedural matters are matters of law and, although

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you may have been curious about them, you should not
consider them.

The rulings I have made during the trial are not
any indication of my views of what your decision
should be.

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We have no doubt that the court's cautionary instructions
8 were heeded. The jury returned a finely tuned verdict in which it
found that three of the five defendants it was considering had not
engaged in malicious prosecution of Manganiello, and that of the
two defendants who had, only Agostini had done so knowing that he
was engaging in misconduct. We have examined the record and are
persuaded that the trial court's comments, questions, and rulings
did not deny Agostini a fair trial.

# CONCLUSION

We have considered all of Agostini's contentions on this
appeal and have found them to be without merit. The judgment of
the district court is affirmed.

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Manganiello v. Agostini

Testo completo

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